Can a joint and contractual trust be revoked by sole surviving settlor?

Florida law recognizes that parties may execute joint and mutual testamentary instruments. One Florida court held that a joint and mutual will may be the product of a contract providing that it cannot be revoked except by the mutual consent of the parties and providing that it be binding on the survivor, and where the terms of the will clearly disclose that it is the product of such a contract, the will itself is sufficient evidence to establish the contract. See, In re Estate of Rowland, 504 So.2d 543 (Fla. 4th DCA 1987). (more…)

Is Florida legislation needed to address the presence of undue influence in trust revocation situations involving vulnerable elderly adults?

It is no secret that Florida is home to a geriatric population, many of whom are vulnerable to exploitation due to the infirmities of age and diminished mental capacity.  A recent study discovered that the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1 percent of persons 60 years old to a condition afflicting approximately 30 percent to 45 percent of persons 85 years old.[1]

Many Floridians who have revocable trusts as an aspect of their estate planning are susceptible to what I consider to be an area of concern as to the existing status of the law as it stands in Florida.  Specifically, I am concerned that existing decisional case law in Florida allows for persons, whose capacity to make adequately-considered decisions in connection with their revocable trusts is diminished because of dementia, to remain vulnerable to undue influence. (more…)

Can a Trust Exist Where the Beneficiaries’ Interest Are Contingent on Surviving the Settlor or Other Events?

This interesting question was raised not only discussions leading up to the drafting of the Third Restatement of Trusts, but also in recent case law. For example, in Hoggan v. Hoggan, 169 P.3d 750, 588 Utah Adv. Rep. 24, 2007 UT 78 (2007) the Court was presented with the following:

The Eleventh Hour Amendment
Shortly before she passed away, Leona Hoggan amended a trust that she had created some fifteen years earlier. The amendment provided that, upon Loena’s death, her son John would be forgiven a loan Leona had made to him, rather than receiving a one-third interest in the trust property. (more…)